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Ex Aequo et Bono – Some Post-Mandate Reflections

In: European Convention on Human Rights Law Review
Author:
Ganna Yudkivska Former Judge of the European Court of Human Rights, a position held in 2010–2022, Strasbourg, France, yudkivska@gmail.com

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But let justice roll down like waters,

and righteousness like an ever-flowing stream

Amos 5:24

It is, of course, not possible to fit twelve years of my judicial life into a short editorial,1 and this is not my aim. Instead, I will propose here some rather superficial reflections on my contribution to ‘bridging the gap between law and society’s needs’,2 using the definition of judicial function by Aharon Barak.

My judicial journey started in 2010. Viktor Yanukovych had just been elected the President of Ukraine; several years before that, the Ukrainian society passed through the peaceful Orange Revolution and continued its path toward the European family.

I belong to the first generation of Ukrainian lawyers who received their legal education not during the totalitarian regime but in independent Ukraine. I was among those lawyers who started to study the European Convention on Human Rights (ECHR, Convention), seeking to find answers to the many questions that we asked at that time. It was the time of somehow naïve hopes that joining the European family will become a straight and short way to a happy democratic future. We also believed that a Western-type rule of law approach would bring us welfare: it was a way to liberation and wellbeing. The fact that it did not happen was disappointing and brought back the dreams among some people of a ‘strong power’, where respect for rights is useless as it cannot produce minimal economic guarantees.

After the collapse of the Soviet Union, we had to build a new political system, and the most straightforward model was a Western-type liberal democracy.

It appears that we got trapped – we mechanically adjusted our legal and constitutional systems without a real understanding by the key actors of what true democracy, the rule of law, and the separation of powers mean. No model of statehood can operate without the appropriate ideological, legal, and cultural preparedness of the society. Liberal rule of law institutions could not be hastily transplanted onto the soil which is alien to them: much more time and preparation were needed. The seeds sown on unprepared soil did not bear the desired fruit.

We joined the European Court of Human Rights (ECtHR, Court) at the end of the 1990s, bringing an enormous number of cases which raised issues already forgotten in Western Europe – appalling conditions of detention, unbelievable ‘Middle Age’ instances of torture, and gross denials of procedural safeguards, for instance.

To my conviction, the Convention system, as it is designed – despite being the system of individual human rights protection – is much more important for a state than for an individual, as it helps a state to identify and cure weak points of its legal system.

Before joining the Court, I was a defence attorney and a human rights activist in Ukraine. I believed that my personal experience of dealing with human rights violations would bring a better understanding of the peculiarities of the Ukrainian judicial process to the Court. My experience, I thought, would contribute to the Court’s judgments that would make a difference in my country.

‘Each generation doubtless feels called upon to reform the world’, as Albert Camus famously said.3 My ‘judicial planning’,4 aimed at identifying the legal problems that seemed to be the most spread and important for Ukraine, later coincided with the Court’s new practice of classifying cases that address systemic problems as ‘leading’ ones.5 The Court’s priority policy was a wonderful tool to push changes through quicker, as every judgment with general measures6 to be subsequently implemented constitutes a ‘building block’ to a legal system, thus helping to overcome flows inherited from the communist legal consciousness.

What came later in Ukraine was fully unpredictable, at least for me, at the time: political persecutions, another revolution but this time a bloody one, the annexation of Crimea, the war in Donbass, and finally, the most horrible, the unprecedented and currently ongoing aggression of the Russian Federation.

These new developments brought new legal challenges which have to be addressed urgently. The limited scope of this editorial note does not allow me to even mention all of the key and leading cases in relation to Ukraine. Instead, I will just briefly outline several cases that reflected the main social concerns.

First of all, for me as a criminal lawyer, issues related to the criminal procedure were of the utmost importance. In 2001, when I was a practising lawyer in Ukraine, major amendments to the Code of Criminal Proceedings were adopted to bring the Code into compliance with the European standards, developed by the Court. It was, however, a purely cosmetic retouch – the artificial incorporation of some ‘progressive’ features of adversarial proceedings into the existing machinery, without any change to its ideological basis.

Obviously, it failed. Numerous complaints to the Court and subsequent judgments concerning various aspects of procedural guarantees followed the adoption of the Code amendments. The ECtHR adopted a number of judgments, including key and quasi-pilot ones7 on Article 5 of the echr as to the periods of detention not covered by any national court order; unlimited periods of detention during the trial stage; using administrative arrest as an artificial pretext for criminal investigation without safeguarding the detainee’s procedural rights; failure to bring the arrested person before a judge promptly; failure to advance relevant and sufficient grounds for extending detention on remand; failure to consider any alternative preventive measures; the lack of a clear procedure for speedy and due review of the lawfulness of detention, and so on.

The vast majority of these problems were eliminated – at least in theory – in the new Code of Criminal Proceedings adopted in 2012, which in my view is one of the most liberal criminal procedural codes in Europe. I believe that this Code is one of the best testaments to the successful impact of the ECtHR on the legal order in Ukraine. That said, some ten-year experience of its application has demonstrated that it is not easy to embody even the best imaginable new law into social relations existing for decades. The real reforms take time, but significant progress has already been achieved.

I cannot but mention a very sensitive issue concerning the independence of the judiciary. In Ukraine, the judicial reform has been of a permanent nature, starting with obtaining independence in 1991. Unfortunately, the reform architects did not aim to improve the mechanisms that guarantee judicial independence, the lack of which makes justice impossible. Instead, after every general and presidential elections the new authorities aim to make judges subordinate. The case of the former Ukrainian Supreme Court judge – which became so well-known among all judges in Europe – was crucial primarily due to the fact that, for the first time, the Court conducted an elaborate study of the national system of dismissal of judges.8 The ECtHR noted a political interference in the dismissal of judges, and ‘serious systemic problems as regards the functioning of the Ukrainian judiciary’.9 The Court established that the system of judicial discipline did not ensure sufficient separation of the judiciary from the other branches of state power, and lacked appropriate guarantees against abuse and misuse of disciplinary measures. Ukraine was urged to adopt general measures aimed at reforming the system of judicial discipline, including the restructuring of the institutional basis of the system. This was done; however, very soon, a new judicial reform gave rise to new problems, and the above concerns of the Court remained relevant.

Following the legislative amendments of 2016, the ‘Supreme Court of Ukraine’ was liquidated and replaced by the new ‘Supreme Court’, in which the judicial vacancies were filled by competition. Eight judges of the old ’Supreme Court of Ukraine’ complained that they were prevented from exercising judicial functions without their formal dismissal. For the Court, the removal of the word ‘Ukraine’ from the title of the ‘Supreme Court of Ukraine’ could not be the grounds for dismissal of all judges or their transfer to another court. The ECtHR recalled the principle of the irremovability of judges as a key element for the maintenance of judicial independence and public trust in the judiciary. It further formulated a principle, subsequently applied in other cases against different member states: ‘[…] when referring to the special trust and loyalty that [the judges] must observe, it is loyalty to the rule of law and democracy and not to holders of State power’.10 This must be respected by all political elites.

Several complaints by the judges of the Constitutional Court of Ukraine (including three of the Court’s former Presidents) concerning their allegedly unlawful dismissal are pending before the ECtHR. Two of them may raise an issue of functional immunity (i.e., dismissal for a decision that a judge has made), as the applicants were dismissed in 2014 for their judicial decision of 2010 that allegedly allowed the then President, Yanukovych, to usurp power.11 My learned successor, Judge Gnatovskyy, will undoubtably have to deal with a very sensitive and complex balance between judicial accountability and independence, which is the core issue in cases like this.

The Yanukovych era brought cases to the Court from the former governmental officials that enabled the ECtHR to elaborate on the requirements of Article 18 of the Convention, which were a grey area in the Court’s case law at the time.12

In the case of an opposition leader and ex-Minister of Interior, the Court found a violation of Article 18 because the prosecuting authorities seeking the applicant’s arrest explicitly indicated the applicant’s communication with the media as one of the grounds for his arrest.13 Similarly, in the case of the former Prime Minister, the purpose of the applicant’s detention was to punish her for lack of respect towards the national court which, it was claimed, she had demonstrated during the proceedings. Again, the restriction of the applicant’s liberty was applied for an improper reason.14 The change of political regime in 2016 led to new Article 18 complaints, several of which are now communicated to the Government. Indeed, this vicious circle of political revenge against predecessors should be stopped.

Political changes in Ukraine further prompted the Court to examine important and sensitive post-conflict applications like the ones related to a so-called ‘lustration law’ – the Government Cleansing Act adopted in 2014 concerning officials and civil servants of either the Yanukovych regime or the former Communist regime. With all due respect to the dramatic events in Ukraine, the Court recalled ‘a well-established principle that lustration may not be used for punishment, retribution or revenge’.15 The ECtHR doubted whether this law pursued a legitimate aim since the impugned measures were very broad in scope. The applicants were dismissed because they were merely employed in the state institutions during the Yanukovych era. The law in question did not require the authorities to establish that the applicants performed any specific functions or to establish links to the anti-democratic regime of the time. The declared aim of this law in restoring trust in the public institutions and protecting democratic governance could have been achieved by less intrusive means.

Until the end of 2013, Ukraine remained one of the very few post-Soviet states where no blood had been spilled – no armed conflict or violent protests had occurred. The brutal dispersal of protesters on Maidan in November 2013 arguably became the point of no return. It escalated into unprecedentedly numerous protests and ultimately led to mass shootings; it further precipitated the annexation of Crimea and incursion into Eastern Ukraine.

Another group of cases that reached the ECtHR in the aftermath of the 2013 revolution dealt with the violent dispersal of the protests. In particular, five judgments concerning thirty-eight applicants from different cities, who were detained, kidnapped, and ill-treated (resulting in death in one case) were delivered in January 2021.16 The Court found numerous violations of the echr and pointed out that these judgments demonstrated a deliberate strategy on the part of the authorities to hinder and put an end to the protest which was initially peaceful. The authorities’ rapid recourse to excessive force ‘resulted in, if not contributed to, an escalation of violence’.17

Following the subsequent events,18 the authorities enhanced the anti-terrorism legislation. In October 2014, the amendments were introduced into the Code of Criminal Procedure, excluding any other preventive measure other than pre-trial detention for separatist and terrorist offences.

When it comes to terrorism – the biggest threat for human rights- an acceptance of trade-offs is deemed as the only possible solution. Security and safety became our new religion; there is a strong conviction that security can only be achieved through making those trade-offs – shrinking civil rights, including liberty, freedom of movement, and privacy. In this situation, the Court, while not ignoring the difficulties of a struggle against terrorism, clearly refused to enter into the false dilemma of choice between liberty and security.19

The ECtHR had to deal with this false dilemma in Ukrainian cases. However, assessing the use of the Bail Exclusion Clause in the case of an applicant suspected of organising and leading a terrorist group,20 the Court found no violation of the Convention. The domestic courts of Ukraine had the power to review the existence of a reasonable suspicion against the defendant and order his release if they considered that no such suspicion existed. The ruling of the Ukrainian courts was a result of a balanced assessment which had taken into account the risks posed by the applicant’s release.

Loss of the part of the territory of Ukraine in 2014 brought a number of legal issues concerning the Convention rights of individuals. In several cases, the national criminal case files of those detained pending trial were no longer in the territory controlled by the Ukrainian government. For that reason, the proceedings against them could not be completed. In these cases, the Court was satisfied that the authorities of Ukraine had taken all the measures available to it to organise its judicial system in a way that would render the Convention rights effective in practice.21

Another group of cases were submitted by those who remained in the Donbass region, outside the control of the Government, and whose social benefit payments were thus suspended following the relevant decision.22 The Ukrainian authorities established courts for the occupied territories in the nearby controlled regions. However, in these cases, the applicants alleged that they could not travel to these regions and thus did not have access to court. The Court found no evidence to support these allegations and repeated that the Ukrainian authorities had taken all the reasonable measures to ensure the proper functioning of the judicial system in the specific situation of the ongoing conflict.

Many long-lasting and crucially important problems that the Ukrainian legal system faced were addressed in ‘pilot’ and ‘quasi-pilot judgments’, such as dreadful conditions of detention and absence of preventive and compensatory remedies in this respect,23 absence of a proper system of review of whole-life sentences,24 indefinite moratorium on alienation of agricultural land,25 and so on. Many more are still to be addressed.

The political withdrawal from socialism was a tense process. Contrary to some Central European states that received their ‘institutional anchor’ – the European Union – in 90s and early 2000s, Ukraine and some other post-Soviet countries had to transform their statehood on their own, in the brutal realities of the post-Soviet political process.

It might appear that we did not achieve a great success so far; however, we have achieved much more than some of our neighbours. Ukraine is not considered to be a full democracy, but authoritarian tendencies do not prevail in Ukraine for a very important reason – we have a strong civil society that does not allow dictators to usurp power, with such attempts already leading to two revolutions. In one of my papers written during the Revolution of Dignity,26 I argued that the most obvious influence that the ECtHR had on Ukraine is a rise of a civil society. My conviction that this was a correct observation is even stronger now in 2022. The Convention as interpreted by the Court became instrumental for numerous Ukrainian ngo s to insist on and enhance human rights, not only through engagement into strategic litigation and bringing leading cases to the Court but also by lobbying execution of the Court judgments and promoting the implementation of the human rights standards. The Court developed the key tools that are used at the domestic level to encourage rule of law standards.

In 2022, Russia attacked Ukraine. The impact of the war on a still fragile legal order in Ukraine is evidently catastrophic.

Unquestionably, we will win this war, and will have to continue building a state committed to the rule of law. My learned successor will face numerous challenges in the upcoming years, and I have no doubt that he will cope with them in the most professional and decent way. The new judgments of the Court adopted with his participation ex aequo et bono will serve as a compass for the strayed ship of the Ukrainian legal system.

1

Ex aequo et bono is a Latin concept, which means: ‘what is just and fair or according to equity and good conscience’ (author’s translation).

2

A Barak, The Judge in a Democracy (Princeton University Press 2006) xvii.

3

A Camus, ‘Banquet Speech’ (Nobel Banquet at the City Hall, Stockholm, 10 December 1957): <https://www.nobelprize.org/prizes/literature/1957/camus/speech/>.

4

‘Judicial planning’ is a notion for a ‘consciously articulated process of planning for the future development of the law’. See, A Barak, ‘Judicial Discretion’ (Yadin Kaufman tr, Yale University Press 1989) 222.

5

ECtHR, ‘The Court’s Priority Policy’: <https://www.echr.coe.int/documents/priority_policy_eng.pdf>.

6

As opposed to individual measures, the general ones are the consequences of the ECtHR judgments that aim to tackle the underlying conditions of the identified violations.

7

Kharchenko v Ukraine 40107/02 (ECtHR, 10 February 2011); Balitskiy v Ukraine 12793/03 (ECtHR, 3 November 2011); Ruslan Yakovenko v Ukraine 5425/11 (ECtHR, 4 June 2015), and many others.

8

Oleksandr Volkov v Ukraine 21722/11 (ECtHR, 9 January 2013).

9

Ibid para 199.

10

Gumenyuk and Others v Ukraine 11423/19 (ECtHR, 22 July 2021) para 66.

11

Ovcharenko and Kolos v Ukraine 27276/15 and 33692/15 (ECtHR).

12

The gc judgment in the case of Merabishvili v Georgia [gc] 72508/13 (ECtHR, 28 November 2017) was supposed to clarify the scope of Article 18, based also on the judgments in the Ukrainian cases discussed below.

13

Lutsenko v Ukraine 6492/11 (ECtHR, 3 July 2012).

14

Tymoshenko v Ukraine 49872/11 (ECtHR, 30 April 2013).

15

Polyakh and Others v Ukraine 58812/15 and 4 others (ECtHR, 17 October 2019).

16

Shmorgunov and Others v Ukraine 15367/14 and 13 others (ECtHR, 21 January 2021); Lutsenko and Verbytskyy v Ukraine 12482/14 and 39800/14 (ECtHR, 21 January 2021); Kadura and Smaliy v Ukraine 42753/14 and 43860/14 (ECtHR, 21 January 2021); Dubovtsev and Others v Ukraine 21429/14 and 9 others (ECtHR, 21 January 2021); Vorontsov and Others v Ukraine 58925/14 and 4 others (ECtHR, 21 January 2021).

17

Shmorgunov and Others (n 16) para 527.

18

For instance, the annexation of Crimea and the war in Donbass.

19

See also, L Sicilianos, ‘The European Court of Human Rights at a Time of Crisis in Europe’ (sedi/esil Lecture, European Court of Human Rights, 16 October 2015): <http://esil-sedi.eu/wp-content/uploads/2018/04/Sicilianos_speech_Translation.pdf>.

20

Grubnyk v Ukraine 58444/15 (ECtHR, 17 September 2020).

21

Khlebik v Ukraine 2945/16 (ECtHR, 25 July 2017).

22

Tsezar and Others v Ukraine 73590/14 and 6 others (ECtHR, 13 February 2018).

23

Sukachov v Ukraine 14057/17 (ECtHR, 30 January 2020).

24

Petukhov v Ukraine (No 2) 41216/13 (ECtHR, 12 March 2019).

25

Zelenchuk and Tsytsyura v Ukraine 846/16 and 1075/16 (ECtHR, 22 May 2018).

26

G Yudkivska, ‘Ukraine: Ukraine on the Way to Democracy: Role and Achievements of the European Court of Human Rights’, in The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives, I Motoc and I Ziemele (eds), (Cambridge University Press 2016) 457.

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